Chief Justice Assails Library On Release of Marshall Papers

By NEIL A. LEWIS,

Published: May 26, 1993

WASHINGTON, May 25—
In an angry letter on behalf of a majority of the Supreme Court, Chief Justice William H. Rehnquist accused the Library of Congress today of bad judgment in releasing the papers of Justice Thurgood Marshall so soon after his death, and he warned that Justices might no longer donate their papers to the Library.

"I speak for a majority of the active Justices of the Court," the Chief Justice wrote in an extraordinary and stinging letter to James H. Billington, the Librarian of Congress, "when I say that we are both surprised and disappointed by the library's decision to give unrestricted public access to Justice Thurgood Marshall's papers."

Chief Justice Rehnquist did not say which other Justices shared this position. But the sharp reaction of the Justices reflected their longstanding deep discomfort with any disclosure about the Court's inner workings that could strip away some of the mystique of how decisions are reached. The Aura of Secrecy

Justices have written publicly, and said in private conversations, that the aura of secrecy is an important factor in maintaining the Court's authority in the eyes of the country.

Justice Rehnquist's letter said the library misinterpreted the agreement Justice Marshall signed with Mr. Billington in 1991 for the disposition of his judicial papers. The Chief Justice said that while the library had discretion to make the papers available, it had an obligation to consult with other members of the Court and Justice Marshall's family.

Had the library staff done so, he said, it would have understood the need to keep the materials private for a longer time. The Library's Defense

Jill Brett, the library's chief spokeswoman, said that Mr. Billington, who returned this afternoon from a trip to Asia, would have no comment on the Chief Justice's letter.

But Ms. Brett did defend the Library's interpretation of the "instrument of gift" as the deed is called, and said it clearly provided for the material to be released to the public upon Justice Marshall's death.

In the letter, Justice Rehnquist warned, "Unless there is some presently unknown basis for the library's action, we think it is such that future donors of judicial papers will be inclined to look elsewhere for a repository." While many Justices donate their papers to the library, others give theirs to universities.

The Justices were apparently taken by surprise by the publication this week, first in The Washington Post and then in other newspapers, of details contained in Justice Marshall's papers. The library said Justice Marshall fully understood that he was agreeing to make his papers available to the public upon his death.

The collection of more than 173,000 pages provides a rare glimpse of the behind-the-scenes evolution of Court opinions in cases involving the most heated legal and social issues of the day -- abortion, homosexual rights, criminal justice and civil rights. Their release constitutes a rare event in modern history in that they disclose some of the inner workings of the Court on cases as recent as two years ago, when Justice Marshall retired.

The two clauses in the deed that are at issue provide that after Justice Marshall's death, "the Collection shall be made available to the public at the discretion of the library."

The next clause says, "Use of the materials constituting this gift shall be limited to private study on the premises of the library by researchers or scholars engaged in serious research." Journalists Are Researchers

William T. Coleman Jr., a longtime friend and personal lawyer to Justice Marshall, said that the second clause precluded making the papers available to journalists or the general public.

But Ms. Brett said, "It has always been the library's policy to consider journalists as researchers." She said that clause precludes only the most casual inquiry, which she said would cover, for example, high school students or tourists walking through the library's exhibits who suddenly decide that they would like to peruse the Marshall files.

Despite the sharp objections to the disclosures, the portrait of the Court that emerges from the Marshall papers is largely a favorable one, showing the Justices involved in indisputably serious deliberations. Deliberating and Bargaining

Still, the papers show much evidence of intellectual politicking as the Justices struggle to forge majorities. That in itself would be troubling to any Justices who believe that public acceptance of the Court's rulings depends on the perception that they are products of nonpolitical, even ethereal decision-making.

The documents cover most of the government career of Justice Marshall, who died last January at the age of 84, including his life as a Federal appeals court judge and United States Solicitor General as well as his 24-year career on the Supreme Court beginning in 1967.

The Chief Justice's suggestion that Justice Marshall's family should have been consulted about the disclosure is an unusual one, archivists have said. But the Marshall papers are also unusual in having been released so soon after his retirement.

By contrast, the release of other Justices' papers have come far later after the fact, either because they stipulated long waits or because more time elapsed from the time they made the donations until they died. Do Some Justices Disagree?

The reference to the "majority" of the current active Justices in Justice Rehnquist's letter is ambiguous, but it may refer to the possibility that some Justices disagreed with him.

Mr. Coleman has said that Justice Marshall initially wanted all his papers destroyed upon his death, but that he persuaded his friend to have the papers preserved for history.

Like Chief Justice Rehnquist, Mr. Coleman has complained that the release of the papers could discourage other Justices from donating their papers to the library. In an interview on Monday, he called the release "shocking and despicable" and said it had caused deep dismay to Justice Marshall's widow, Cecilia.

Mr. Coleman, who was Transportation Secretary under President Gerald R. Ford, has said he hopes to meet with Mr. Billington to try and persuade him to restrict further access to the papers. Senators Are Approached

The Marshall family also opened up a second front today in its battle against the library by asking at least a few members of the Senate to complain to Mr. Billington about the release of the papers. Senator Orrin G. Hatch of Utah, the ranking Republican on the Judiciary Committee, sent a letter asking the Library to close down access to the files. He was asked to do so by the Justice's son, Thurgood Marshall Jr., said J. Paul Smith, the Senator's spokesman.

It seemed highly unlikely, if not impossible, for the library to end general access to the Marshall papers. Several newspaper reporters and other researchers have already made photocopies of some of the most important documents in the collection.